Fortunately, with the modernization of courtrooms and technological advances, videoconferencing over the years has presented a higher quality, fully synchronized video and audio system. However, courtrooms need to familiarize themselves with the ever evolving technology and its use in a court setting. The fear of a dropped video feed in the middle of cross examining a witness, or simply during a witness’ emotional testimony is an understandable one, as it may hinder the impact of the evidence and its credibility and individuals intrinsically believe that there is an indefinable value to a live appearance in a courtroom. This is a stigma that may only be broken by increasing the frequency of video testimony so that the technical issues over time seem less detrimental to credibility and reliability.
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Consistently, as with other sociological changes, the law has not yet fully evolved to keep up with technological development in the courtroom. The rise of videoconference testimonies poses a number of challenges to civil litigators and brings up fundamental and constitutional issues to the justice system. Concerns range from the consequences of physical absence from the courtroom influencing truth-telling and reliability to the inability to determine mannerisms, the importance of cross examination, as well as the importance of face to face interactions between the witness and the defendant in open court. Though a live video might not seem harmful to some if used correctly, for others it is said to undermine the fundamental principle of dignity by contrasting the presumption of innocence by assumption of guilt simply because they are not present. This destabilizes the image of objectivity that courtrooms are believed to have. Videoconference testimonies challenge the fundamental perceptions of fairness. Videoconferencing typically works well from a technological perspective, excluding the possibility of minor hiccups, though “its pragmatic and legal utility have long been controversial”, particularly when considering the constitutional right of procedural fairness.
The Canadian Charter of Rights and Freedoms, found in the Constitutional Act of 1982, states that everyone has “the right to life, liberty, security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” To be more precise the Charter of Rights and Freedoms expresses that throughout judicial proceedings, there must be procedural fairness. Procedural fairness is a constitutional right that is protected and overseen by the legal framework within public administration: administrative law. Administrative law “supervises” that laws are implemented and administered in a fair and sensible manner and must consider and balance “fundamental values and substantive rationality”, which all falls under the umbrella of procedural fairness.
Procedural fairness has multiple components, but primarily it is the right for every citizen to be heard before a judgement is made, as well as guaranteeing that every decision is made by an impartial and objective law-respecting decision maker. In 1990, the Supreme court heard the case of Knight v. Indian Head School Division in which procedural fairness was at the forefront of the dispute. Justice Heureux-Dubé, who wrote for the majority, explained the necessity for a broad scope of procedural fairness, she conceived of it “as a general right that would arise autonomous of the operation of any statute”. Heureux-Dubé wrote that procedural fairness exists once these three requirements are met: (1) the nature of the decision to be made by the administrative body, (2) the relationship existing between that body and the individual; and (3) the effect of that decision on the individual’s rights.
Administrative law has a looming task ahead of them in dealing with the intersection between technology in the courtroom with the fairness and objectivity of a tribunal’s decision, which the Constitution promises its’ citizens. A successful legal challenge to a tribunal’s decision to allow videoconferencing is always possible depending on the circumstances but more so if the party can successfully prove that the result due to this use of technology would be unjust and would not adhere to the constitutional right of procedural fairness . How our courts resolve these challenges will represent the next big challenge of administrative law.
In Regina v. Dix, the Alberta Court of Queen’s Bench granted the application for a witness to testify via videoconference at the trial. The witness did not wish to travel to Alberta to testify due to inconvenience considering she lived in the United Kingdom. The defendant attempted to appeal the use of the video by arguing that the Crown could only obtain the evidence by way of “commission evidence” due to the fact that there was a debate as to the availability of sanctions if the witness committed perjury. However, the application was granted by the court as it stated: “The procedure was not a form of commission evidence. It was a technological innovation developed subsequent to commission evidence…Appropriate safeguards for reliability, public access and security were available. There was no reason not to allow admissible and relevant evidence to be given by video conference.”
The rule in Regina. v. Dix led to the adoption of section 714.1 of the Criminal Code which reads: “A court may order that a witness in Canada give evidence by means of technology that permits the witness to testify elsewhere in Canada in the virtual presence of the parties and the court, if the court is of the opinion that it would be appropriate in all the circumstances, including:
(a) the location and personal circumstances of the witness;
(b) the costs that would be incurred if the witness had to be physically present; and
(c) the nature of the witness’ anticipated evidence.”
In 2008, British Columbia’s provincial court reiterated that the purpose of the addition of s. 714.1 of the Criminal Code is to address not only the high costs of litigation but also the “inconvenience and the disruption of the lives of witnesses”. The honorable judge E.C. Blake stated that though virtual presence in a courtroom is not equivalent to actual physical presence, it is obvious that by the adoption of s. 714.1, the legislature intended that the court receive such evidence when the circumstances allow for it, except where it is “demonstrably contrary to the principles of fundamental justice”. Blake also states that judges, lawyers and the public sometimes make the very common mistake by assessing credibility solely on physical observations of the witness’ testimony . He states credibility is a multifaceted matter, and that whether or not there is physical presence should not be the judging factor of a witness’ credibility .
The use of videoconference testimony under s. 714.1 of the Criminal Code is discretionary.
This discretion requires multiple factors to be considered to allow efficient administration of justice while being mindful of the necessity of a fair and objective trial under the Constitutional Act of 1982. R. v. Young has become a popular judgment across Canada considering it lists factors that should be taken into account before a judge allows videoconference testimonies . Such factors include:
“Will a video appearance by the witness impede or impact negatively on the ability of defense counsel to cross-examine that witness? The nature of the evidence to be introduced from the witness and whether it is non-controversial and not likely to attract any significant objection from defense counsel; The integrity of the examination site and the assurance that the witness will be as free from outside influences or interruptions as that person would be in a public courtroom; The distance the witness must travel to testify in person and the logistics of arranging for his or her personal appearance; The convenience of the witness and to what degree having to attend in person at a distant location may interfere with important aspects of the witness’s life, such as his or her employment, personal life and the like; The ability of the witness to attend who lives in a country or area that makes it difficult to arrange for travel or travel in a reliable fashion.”
The listed factors to consider are not exhaustive but are considered to be the basic requirements that must be completed to grant a testimony via videoconference. Once evidence is reviewed and the listed factors are studied, it is left up to the discretion of the judge. Above all, the court must always confirm before granting a videoconferenced testimony, that the witness will be able to be seen, heard and cross examined correctly, without interfering with court procedures. If a judge has any doubt that videoconferencing will harm procedural fairness or simply believes that the appellant does not meet the criteria for a remote testimony, the sitting judge should refuse the request. Judicial discretion is the ultimate authorizing factor of such a request, a judge must consider the extent to which video technology will allow for the effective administration of justice while being mindful of the necessity for a fair trial.
Essentially, one must note that a fair trial should always pre-vail, a case where credibility of a witness is essential to the dispute will sway the judge against the use of live video testimony in the court room; a judge should be reluctant when one of the main issues of the case is one of credibility. Justice Costigan stated that above all the integrity of the proceedings should not be altered. Nonetheless, the chance that there might be difficulties during a videoconference testimony, whether that be if the witness fails to answer properly or is uncooperative, should not be the determining factor as to why a judge does not grant such technology in his or her courtroom. Like with face to face testimony, if difficulties arise, the court will adjust itself as needed: “they can be met during the course of the evidence, as an extreme example, the evidence could be considered of no weight or the procedure could be discontinued.”
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